State v. Snow

[Cite as State v. Snow, 2015-Ohio-358.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 14CA0019-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GEORGE SNOW MEDINA MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE No. 13TRC01235
DECISION AND JOURNAL ENTRY
Dated: February 2, 2015
BELFANCE, Presiding Judge.
{¶1} Defendant-Appellant George Snow appeals from the judgment of the Medina
Municipal Court. For the reasons set forth below, we affirm.
I.
{¶2} Around midnight on March 10, 2013, Medina Township Police Officer Justin
Harvey stopped the vehicle driven by Mr. Snow after Officer Harvey observed the vehicle
traveling at 67 miles per hour on a road with a 55 mile per hour speed limit. Upon approaching
the vehicle, Officer Harvey detected an odor of alcohol emanating from the vehicle and noticed
that Mr. Snow had bloodshot and glassy eyes. Mr. Snow informed Officer Harvey that he had
consumed two beers and that he finished his last one close to thirty minutes prior to the stop.
After conducting field sobriety tests, Officer Harvey arrested Mr. Snow and transferred him to a
state highway patrol post. There, a trooper administered a BAC Data Master Test to Mr. Snow
which read .094. Upon moving Mr. Snow’s vehicle, a mason jar containing an alcoholic
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beverage was discovered in the back seat. A complaint was filed alleging that Mr. Snow violated
R.C. 4511.21(C), 4511.19(A)(1)(a), and 4511.19(A)(1)(d).
{¶3} Mr. Snow waived a reading of the complaint and entered a not guilty plea. Mr.
Snow’s counsel filed a motion to suppress. The trial court concluded that the initial stop of Mr.
Snow was justified. It further found that the results of the field sobriety tests were inadmissible
because the State failed to demonstrate they were conducted in substantial compliance with
testing standards as required by R.C. 4511.19(D)(4)(b). Nonetheless, the trial court concluded
that there was probable cause to arrest Mr. Snow and that the operator of the BAC machine was
certified to administer the test. Ultimately, Mr. Snow entered a no contest plea to a violation of
R.C. 4511.19(A)(1)(a), and the remaining charges were dismissed. The trial court sentenced Mr.
Snow to 90 days in jail, suspended 80 of them, and ordered Mr. Snow to serve a year of
probation. The trial court also fined Mr. Snow $1000 and suspended his driver’s license. Mr.
Snow has appealed, raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE
ISSUE OF WHETHER THERE WAS REASONABLE SUSPICION TO
CONDUCT FIELD SOBRIETY TESTS IN THE MOTION TO SUPPRESS.
{¶4} Mr. Snow asserts in his first assignment of error that his trial counsel was
ineffective for failing to file a motion to suppress concerning whether there was reasonable
suspicion to conduct the field sobriety tests. We do not agree.
{¶5} To establish ineffective assistance of counsel, Mr. Snow must demonstrate “(1)
deficient performance by counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel’s
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errors, the proceeding’s result would have been different.” State v. Mundt, 115 Ohio St.3d 22,
2007-Ohio-4836, ¶ 62. “There is a strong presumption in favor of the adequacy of counsel, and a
defendant must demonstrate that any claimed errors are more than a disagreement over trial
strategy.” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 53. The “[f]ailure to file a
suppression motion does not constitute per se ineffective assistance of counsel.” (Internal
quotations and citations omitted.) State v. Madrigal, 87 Ohio St.3d 378, 389 (2000). “To
establish ineffective assistance of counsel for failure to file a motion to suppress, a defendant
must prove that there was a basis to suppress the evidence in question.” Brown at ¶ 65. “In
addition, deficient performance cannot be demonstrated where the record fails to disclose the
circumstances surrounding the alleged Fourth Amendment violation.” State v. Kendall, 9th Dist.
Summit No. 25721, 2012-Ohio-1172, ¶ 7. “Furthermore, in order to satisfy the prejudice prong
of the * * * test, a defendant must demonstrate that there was a reasonable probability that the
motion to suppress would have been granted.” Id.{¶6} In the instant matter, trial counsel did file a motion to suppress. That motion
asserted that (1) “[t]he officer did not have reasonable suspicion to stop, detain, or probable
cause to arrest the defendant[;]” (2) “[t]he field sobriety tests and video should be suppressed or
prohibited from being introduced at trial[;]” (3) “[t]he State failed to comply with the Ohio
Administrative Code Testing Regulations[;]” and (4) “[t]he defendant’s statements should be
suppressed.” Thus, while the motion did not specifically allege that the officer lacked reasonable
suspicion to conduct the field sobriety tests, it did broadly assert that the officer lacked
reasonable suspicion to detain Mr. Snow. It is true that there were very few questions posed
about the basis justifying the field sobriety tests at the suppression hearing; however, it is
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difficult to say that the scope of Mr. Snow’s motion did not embrace the issue of whether the
officer lacked reasonable suspicion to conduct the field sobriety tests.
{¶7} Moreover, we note that the motion to suppress evidences that trial counsel
examined the discovery provided, which included watching the video of the stop. Additionally,
it is important to point out that trial counsel’s motion was effective in part – trial counsel
succeeded in getting the results of the field sobriety testing suppressed.
{¶8} Even assuming that trial counsel did neglect to file a motion on the precise issue
of whether there was reasonable suspicion justifying the field sobriety tests, we cannot say the
record establishes that trial counsel would have been successful on the motion.
{¶9} “[A] police officer does not need probable cause to conduct a field sobriety test;
rather, he must simply have a reasonable suspicion of criminal activity.” (Internal quotations and
citation omitted.) State v. Saravia, 9th Dist. Summit No. 25977, 2012-Ohio-1443, ¶ 10. Thus,
“[t]o justify [the] particular intrusion, the officer must demonstrate specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant that
intrusion.” (Internal quotations and citations omitted.) Maumee v. Weisner, 87 Ohio St.3d 295,
299 (1999). “Rather than involving a strict, inflexible standard, its determination involves a
consideration of the totality of the circumstances. Under this analysis, both the content of
information possessed by police and its degree of reliability are relevant to the court’s
determination.” (Internal quotations and citations omitted.) Id. Accordingly, decisions
concerning the presence or absence of reasonable suspicion are highly fact intensive. See State
v. Criswell, 162 Ohio App.3d 391, 2005-Ohio-3876, ¶ 8 (2d Dist.).
{¶10} When Officer Harvey was asked the basis for administering the field sobriety
tests, he specifically pointed to Mr. Snow’s bloodshot and glassy eyes, the fact that Mr. Snow
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was speeding, and the odor of alcohol emanating from the vehicle. However, it is unclear
whether Officer Harvey would have pointed to additional factors if the parties had been focused
on this as an issue at the suppression hearing. As noted above, the record contains additional
circumstances available to the officer which might tend to support the suspicion that Mr. Snow
was intoxicated. There was evidence that it was late at night and that Mr. Snow had consumed
two beers, one of which he finished approximately thirty minutes prior to the stop. See State v.
Mossman, 10th Dist. Franklin No. 13AP-959, 2014-Ohio-2620, ¶ 13 (concluding that, taken
together, the fact that defendant was speeding, that it was early in the morning, that there was an
odor of alcohol in the vehicle, and that the defendant acknowledged alcohol consumption could
justify field sobriety testing); see also Criswell, at ¶ 9; State v. Balog, 9th Dist. Medina No.
08CA0001-M, 2008-Ohio-4292, ¶ 16 (reasonable suspicion existed to conduct field sobriety
testing where officer notes strong odor of alcohol, defendant admits to drinking, has bloodshot,
glassy eyes, and appeared disheveled). Given the totality of the circumstances, we cannot say
that the likelihood of trial counsel’s success on a motion to suppress asserting lack of reasonable
suspicion to conduct field sobriety test was “a given.” Brown, 115 Ohio St.3d 55, 2007-Ohio-
4837, ¶ 69.
{¶11} For all the reasons discussed above, we cannot say that Mr. Snow has
demonstrated that his trial counsel was ineffective. Accordingly, we overrule his first
assignment of error.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY FINDING THAT THE ARRESTING
OFFICER HAD PROBABLE CAUSE TO ARREST MR. SNOW FOR OVI.
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{¶12} Mr. Snow argues in his second assignment of error that the trial court erred in
denying his motion to suppress because the officer lacked probable cause to arrest Mr. Snow.
We do not agree.
{¶13} The Supreme Court of Ohio has held that
[a]ppellate review of a motion to suppress presents a mixed question of law and
fact. When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. Consequently, an appellate court must
accept the trial court’s findings of fact if they are supported by competent,
credible evidence. Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. We
review a probable cause determination de novo. State v. Vonalt, 9th Dist. Medina No.
10CA0103-M, 2011-Ohio-3883, ¶ 10.
{¶14} “An officer possesses probable cause to arrest a person for a violation of R.C.
4511.19[ ] when the totality of the circumstances at the time of arrest would lead a reasonable
person to believe that the person to be arrested is operating a vehicle while impaired.” (Internal
quotations and citations omitted.) Id. As correctly noted by the trial court, in evaluating whether
probable cause exists, an officer’s observations concerning a defendant’s performance on
nonscientific standardized field sobriety tests are admissible even if the results are not. State v.
Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 14-16; see also Vonalt at ¶ 12.
{¶15} In the instant matter, as discussed above, there was evidence that Mr. Snow was
speeding at the time of the stop, that he had bloodshot, glassy eyes, that it was approximately
midnight, and that he had consumed two beers, one of which he finished approximately thirty
minutes prior to the stop. Additionally, Officer Harvey testified concerning his observations of
Mr. Snow’s performance on the field sobriety tests. In this regard, we note that there is nothing
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in the record to suggest that the officer’s failure to substantially comply with the NHTSA
standards in the administration of the field sobriety tests altered the tests to a degree that the
officer’s observations about Mr. Snow’s performance of those tests could not be considered in
determining whether probable cause existed. Officer Harvey indicated that Mr. Snow had
difficulty complying with the instructions he provided for the horizontal gaze nystagmus test.
Officer Harvey testified that he instructed Mr. Snow to follow the stimulus with only his eyes
and Mr. Snow was following it with his head and eyes. Officer Harvey also observed that Mr.
Snow failed to completely comply with his instructions on the walk and turn test. Officer
Harvey averred that he “observed that [Mr. Snow] did not touch heel to toe on some steps. He
almost lost his balance on quite a few. He did not turn in the prescribed manner that [was]
demonstrated for him. Also he stepped off line and kicked his leg out to the left to try to steady
himself.” Finally, Officer Harvey testified that, during the one-leg-stand test, Mr. Snow “swayed
while he was balancing[.]” Moreover, the trial court was able to view the video of the stop to
verify Officer Harvey’s observations with respect to Mr. Snow’s performance on the field
sobriety tests.
{¶16} In light of the totality of the circumstances before the trial court, we cannot say
the trial court erred in concluding that Officer Harvey possessed probable cause to arrest Mr.
Snow for violating R.C. 4511.19. See State v. Russo 9th Dist. Medina No. 09CA0009-M, 2009-
Ohio-6914, ¶ 12; State v. McGinty, 9th Dist. Medina No. 08CA0039-M, 2009-Ohio-994, ¶ 20;
State v. Sunday, 9th Dist. Summit No. 22917, 2006-Ohio-2984, ¶ 33; Criswell, 162 Ohio App.3d
391, 2005-Ohio-3876, at ¶ 9-10. We overrule Mr. Snow’s second assignment of error.
III.
{¶17} In light of the foregoing, we affirm the judgment of the Medina Municipal Court.
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Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina Municipal
Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR.
APPEARANCES:
JOSEPH C. PATITUCE and CATHERINE R. MEEHAN, Attorneys at Law, for Appellant.
GREGORY HUBER, J. MATTHEW LANIER, RICHARD BARBERA, and JOHN G.
QUILLIN, Prosecuting Attorneys, for Appellee.